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44 U.S. 236

3 How. 236

11 L.Ed. 576

WILLIAM F. CARY AND SAMUEL T. CARY, PLAINTIFFS,

v.EDWARD CURTIS.

 January Term, 1845

THIS case came up from the Circuit Court of the United States for the

southern district of New York, on a certificate of division in opinion

 between the judges thereof.

The action was brought in the Circuit Court to recover money paid to

Curtis, as collector of the port of New York, for duties. The declaration

contained the common money counts, and the defendant pleaded the

general issue. The cause was tried at November term, 1842.

The jury found for the plaintiffs, subject to the opinion of the court,

among other things,

1. That the plaintiffs paid the sum of $181.75 to the defendants, on the 3d

July, 1841, for duties on the goods imported as being raw silk.

2. That the goods on which the duties were demanded and paid, were not

raw silk, but a manufactured article.

3. That the money so paid was under a written protest, made at the time of 

 payment.

4. That the money had been paid into the treasury by the defendant, in the

month of July, 1841, and before the commencement of this suit.

Upon the argument of this cause, after verdict, several questions arose;

among others, the following, viz.:

Whether or not the 2d section of the act of Congress, approved on the 3dday of March, 1839, entitled 'An act making appropriations for the civil

and diplomatic expenses of government for the year 1839,' was a bar to

the action?

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On this question the opinions of the judges were opposed. Whereupon, on

motion of the plaintiffs by their counsel, it was ordered, that the foregoing

state of the pleadings and facts, which is made under the direction of the

 judges, be certified under the seal of this court, according to the statute in

such case made and provided, to the Supreme Court of the United States,

to the end, that the question on which the said disagreement has happened

may be finally decided.

The cause was argued (in writing) by Sullivan, for the plaintiffs in error,

and Nelson, attorney-general, for the defendant.

Sullivan, for plaintiffs.

This cause comes before the court on a certificate of a division from the

Circuit Court of the United States for the southern district of New York.

The plaintiffs, as importers, had a perfect right to have and maintain this

action against the defendant upon the facts as found in this cause. Elliott  v.

Swartwout , 10 Pet., 137.

The 2d section referred to in the certificate of division (9 Laws U. S.,

1012) does not take away this right of action.

Because this right existed at common law, and the statute does not expressa clear intent to do so. Bac. Abr. tit. Statute; 19 Vin. Abr., 524, § 125.

Because this right is not taken from the importer by necessary implication;

 but, on the contrary, the prospective language of this section shows, that

Congress contemplated that actions against collectors would and should

 be brought in future, and sustained, as they had been in all cases of illegal

exaction of duties, if paid under sufficient protest. This section provides,

that money paid to a collector under protest shall not be held by him to

await the result of any litigation in relation to the rate or amount of duty

legally chargeable. This is all prospective, and relates to suits which may

 be brought in future; for there is not a word that limits the effect of the

 provision in this section to the past or present, but words in the future

tense only are used. The section commences with the words, 'From and

after the passage of this act,' and refers only to money thereafter to be

received by collectors. The whole tenor of the section imports an intent

not to take away the right of litigation for money paid under protest. But if 

it be urged, that the delegation of a new power to the Secretary of theTreasury to take cognizance of such claims for repayment of duties

illegally exacted, imports, by necessary implication, that Congress

intended to vest in him exclusively the right of ascertaining the facts in

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such cases, and of deciding the law thereon, the plaintiffs respectively ask 

the court to consider in what widely different language such an intent must

needs have been expressed. There must have been an express prospective

 provision of some mode of proving the facts of each case, consistent with

the constitutional guaranty of the right of trial by jury; for up to the

 passing of the act in question, the law had, by necessary implication, and

 by the known course of judicial proceedings in such cases, recognised thisright as the right of all importers paying such duties under protest, and the

means of an ulterior decision of all questions of law other than the opinion

of the secretary would have been provided; whereas this law, by

authorizing the Secretary to repay such illegally exacted duties when he

should be satisfied they ought to be repaid, has left open to importers their 

known and constitutional right of recourse to the tribuanals of law when

he should not be satisfied; so that the true construction of the provision

giving him such a power may be carried into full effect, to the utmostinferrible intention from the terms of this section, quite consistently with

leaving to all importers their remedy at law, as well as the privilege of 

applying to the Secretary at their option.

Because the purpose of this section appears to be two-fold, to wit: the

security of public moneys received for duties under protest, and the

repayment of them by the Secretary in all cases where he may be satisfied

they ought to be repaid, without touching, varying, or altering, in any

manner, the right of action by importers against the collector.

Because the collectors have always been required by law to pay over all

moneys, without reference to protests. See 'An act to regulate the

collection of duties on imports and tonnage,' Acts of 5th Congress, chap.

128, § 21, (3 Laws U. S., 157,) which provides, inter alia, that the

'collector shall at all times pay to the order of the officer who shall be

authorized to direct the payment thereof, the whole of the moneys which

they may respectively receive by virtue of this act; (such moneys as theyare otherwise by this act directed to pay, only excepted;)' and it is by

virtue, in part, of this very act that the collector demanded and received

the money paid in this case.

The money being withdrawn from the collector's hands by law, it would

seem unjust that he should be exposed to a judgment and execution

thereon; but this section provides that it shall be the duty of the secretary

to refund, and thus the collector is indemnified, which is equivalent to aright of retaining money paid under protest, as laid down in the case of 

 Elliott  v. Swartwout , 10 Pet., 154, where the court speak of the collector's

 protecting himself by retaining the money or claiming an indemnity; but if 

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not strictly an indemnity, and it should be found in practice that the

collector was not reimbursed, he would refrain from exacting duties in

doubtful cases until he had the sanction of the Secretary, and his assurance

that the money should be repaid upon the recovery of a judgment at law.

And this court held, in the case of Tracy and Balestier  v. Swartwout , 10

Pet., 98, 99, that the personal inconvenience to the collector is not to be

considered.

The collector is liable for money illegally exacted and paid under protest,

although the same may have been turned over to the government under the

requirements of the acts of Congress.

In the case of Townson v. Wilson and others, 1 Campb., 396, Lord

Ellenborough says, 'if any person gets money into his hands illegally, he

cannot discharge himself by paying it over to another;' and this opinion is

entitled to more consideration than nisi prius decisions usually are,

 because Lord Ellenborough states, that he had consulted the other judges

and that they agreed with him.

In the case of Sadler  v. Evans, or Lady Winsor's case, 4 Burr., 1986, it is

held, that where notice is given, the agent may and ought to be sued, and

cannot exonerate himself by payment. This case is cited and approved in

 Elliott  v. Swartwout .

In the Commentaries of his Honor Judge Story, on Agency, p. 311, § 307,

it is laid down, that 'where money is obtained from third persons, by

 public officers, illegally, but under color of office, it may be recovered

 back again from them if notice has been given by the party, at the time, to

the officer, although the money has been paid over to the government.' In

the case of Elliott  v. Swartwout , 10 Pet., 158, it is held, that 'where money

is illegally demanded and received by an agent, he cannot exonerate

himself from personal responsibility by paying it over to his principal;'and in the case of Bend  v. Hoyt , 13 Pet., 267, it is held that 'there is no

doubt the collector is generally liable in an action to recover back an

excess of duties paid to him, as collector, where the duties have been

illegally demanded, and a protest of the illegality has been made at the

time of payment, or notice then given that the party means to contest the

claim, whether he has paid over the money to the government or not.'

If it be objected that the payments here referred to are voluntary, theanswer is, that it is evident that the contrary is the fact. If the cases and

the remarks in the Commentaries above referred to had been made

concerning an ordinary agent, there might be ground for such an

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objection; but a collector is the defendant in each case, and government

officers are specially referred to in the Commentaries, and if there had

 been any distinction between the kinds of payments, that distinction

would have been referred to, for it was well known to the court, that

collectors and other government officers were then compelled by law to

 pay over all money received by them; and, as has been previously shown,

the section in question is no more compulsory than the laws in force at thetime of those decisions, and, it follows, that they are controlling and

decisive in this case.

The case of Greenway v. Hurd , 4 T. R., 553, 554, does not apply, because

it appears to have been a voluntary payment, and is so decided to be in

 Elliott  v. Swartwout .

[Of Mr. Nelson's argument in reply the reporter has no notes.]

Mr. Justice DANIEL delivered the opinion of the court.

1 In order to arrive at the answer which should be given to the question certified

upon this record, the objects first to be sought for are the intention and meaning

of Congress in the enactment of the 2d section of the act of March 3d, 1839,

under which the question sent here has been raised. The positive language of 

the statute, it is true, must control every other rule of interpretation, yet eventhis may be better understood by recurrence to the known public practice as to

matters in pari materia, and by the rules of law as previously expounded by the

courts, and as applied to and as having influenced that practice. The law as laid

down by this court with respect to collectors of the revenue, in the case of 

 Elliott  v. Swartwout , 10 Pet., 137, and again incidentally in the case of Bend  v.

 Hoyt , 13 Pet., 263, is precisely that which is applicable to agents in private

transactions between man and man, viz.: that a voluntary payment to an agent

without notice of objection will not subject the agent who shall have paid over to his principal; but that payment with notice, or with a protest against the

legality of the demand, may create a liability on the part of the agent who shall

 pay over to his principal in despite of such notice or protest. Such was the law

as announced from this court, and Congress must be presumed to have been

cognisant of its exist ence; and as the peculiar power ordained by the

Constitution to prescribe rules of right and of action for all officers as well as

others falling within the legitimate scope of federal legislation, they must be

supposed to have been equally cognisant of the effects and tendencies of thiscourt's decisions upon the collection of the public revenue. With this

knowledge necessarily presumed for them, Congress enact the 2d section of the

act of 1839. It should not be overlooked, for it is very material in seeking for 

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the views of Congress in this enactment, that the court, in the case of Elliott  v.

Swartwout , in its reasoning upon the second point submitted to them, say, that

the claimant by giving notice to the collector would 'put him on his guard,' by

requiring him not to pay over the money. They farther say, that the collector 

would, by the same means, be placed in a situation to claim an indemnity. The

 precise mode in which this protection of the collector was to be accomplished,

or his indemnity secured, it is true, the court have not explicitly declared; but itis thought to be no forced construction of their language to explain it as

sanctioning a right of retainer in the collector of the funds received by him for 

the government; for what shield so effectual could he interpose between

himself and the cost and hazards of frequent litigation? Indeed, this would

appear, according to the opinion of the court, that very protection which justice

and necessity would equally warrant. In practice, this retainer has, with or 

without warrant, been resorted to.

2 And now let us look to the language of the act of 1839, chap. 82, § 2. 'That

from and after the passage of this act, all money paid to any collector of the

customs, or to any person acting as such, for unascertained duties, or for duties

 paid under protest against the rate or amount of duties charged, shall be placed

to the credit of the treasurer of the United States, kept and disposed of as all

other money paid for duties is required by law, or by regulation of the Treasury

Department, to be placed to the credit of the treasurer, kept and disposed of;

and it shall not be held by said collector or person acting as such, to await anyascertainment of duties, or the result of any litigation in relation to the rate or 

amount of duty legally chargeable and collectible in any case where money is

so paid: but whenever it shall be shown to the satisfaction of the Secretary of 

the Treasury, that in any case of unascertained duties, or duties paid under 

 protest, more money has been paid to the collector, or to the person acting as

such, than the law requires should have been paid, it shall be his duty to draw

his warrant upon the treasurer in favor of the person or persons entitled to the

over-payment, directing the said treasurer to refund the same out of any moneyin the Treasury not otherwise appropriated.' What is the plain and obvious

import of this provision, taking it independently and as a whole? It is that all

moneys thereafter paid to any collector for unascertained duties, or duties paid

under protest, (i. e., with notice of objection by the payer,) shall,

notwithstanding such notice, be placed to the credit of the treasurer, kept and

disposed of as all other money paid for duties is required by law to be kept and

disposed of; that is, they shall be paid over by the collector, received by the

treasurer, and disbursed by him in conformity with appropriations by law, precisely as if no notice or protest had been given or made; and shall not be

retained by the collector (and consequently not withdrawn from the uses of the

government) to await any ascertainment of duties, or the result of any litigation

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relative to the rate or amount of duties, in any case in which money is so paid.

3 This section of the act of Congress, considered independently and as apart from

the facts and circumstances which are known to have preceded it, and may

fairly be supposed to have induced its enactment, must be understood as

leaving with the collector no lien upon, or discretion over, the sums received by

him on account of the duties described therein; but as converting him into themere bearer of those sums to the Treasury of the United States, through the

 presiding officer of which department they were to be disposed of in

conformity with the law. Looking then to the immediate operation of this

section upon the conclusions either directly announced or as implied in the

decision of Elliott  v. Swartwout , how are those conclusions affected by it? They

must be influenced by consequences like the following: That whereas by the

decision above mentioned it is assumed that by notice to the collector, or by

 protest against payment, a personal liability for the duties actually paid,attaches upon, and that for his protection a correspondent right of retainer is

created on his part; it is thereby made known (i. e. by the statute) that under no

circumstances in future should the revenue be retained in the hands of the

collector: that he should in no instance be regarded by those making payments

to him as having a lien upon it, because he is announced to be the mere

instrument or vehicle to convey the duties paid into his hands into the Treasury:

that it is the Secretary of the Treasury alone in whom the rights of the

government and of the claimant are to be tested: and that whosoever shall payto a collector any money for duties, must do so subject to the consequences

herein declared. Such, from the 3d day of March, 1839, was the public law of 

the United States; it operated as notice to every one; it applied, of course, to

every citizen as well as to officers concerned in the regulations of the revenue;

and as it removed the implications on which the decision of Elliott  v.

Swartwout  materially rested, that case cannot correctly control a question

arising under a different state of the law, and under a condition of the parties

also essentially different.

4 It will not be irrelevant here to advert to other obvious and cogent reasons by

which Congress may have been impelled to the enactment in question; reasons

which, it is thought, will aid in furnishing a solution of their object. Uniformity

of imports and excises is required by the Constitution. Regularity and certainty

in the payment of the revenue must be admitted by every one as of primary

importance: they may be said almost to constitute the basis of good faith in the

transactions of the government; to be essential to its practical existence. Withinthe extended limits of this country are numerous collection-dstricts; many

officers must be intrusted with the collection of the revenue, and persons much

more numerous, with every variety of interest and purpose, are daily required to

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make payments at the ports of entry. To permit the receipts at the customs to

depend on constructions as numerous as are the agents employed, as various as

might be the designs of those who are interested; or to require that those

receipts shall await a settlement of every dispute or objection that might spring

from so many conflicting views, would be greatly to disturb, if not to prevent,

the uniformity prescribed by the Constitution, and by the same means to

withhold from the government the means of fulfilling its importantengagements. In the view of mischiefs so serious, and with the intention of 

 preventing or remedying them, nothing would seem more probable or more

reasonable, we might add more necessary, than that the government should

endeavor to devise a plan by which, as far as practicable, to retain its fiscal

operations within its own control, thereby insuring that uniformity in practice,

enjoined by the theory of the Constitution, and that punctuality which is

indispensable to the benefit of all. Such a plan has Congress devised in the act

in question. We have no doubts of the objects or the import of that act; wecannot doubt that it constitutes the Secretary of the Treasury the source whence

instructions are to flow: that it controls both the position and the conduct of 

collectors of the revenue: that it has denied to them every right or authority to

retain any portion of the revenue for purposes of contestation or indemnity; has

ordered and declared those collectors to be the mere organs of receipt and

transfer, and has made the head of the Treasury Department the tribunal for the

examination of claims for duties said to have been improperly paid.

5 It has been urged that the clause of the act of 1839 declaring that the money

received shall not be held by any collector to await any ascertainment of duties,

or the result of any litigation in relation to the rate or amount of duties legally

chargeable and collectible in any case where money is so paid; shows that

Congress did not mean to deprive the party of his action of assumpsit against

the collector: that litigation of that description was still contemplated, and that

the only object of the law was to place the money in dispute in the possession

of the treasurer, to await a decision, instead of leaving it in the hands of thecollector. The court cannot assent to this construction. It will be remembered

that the two principal cases in which collectors have claimed the right to retain,

have been those of unascertained duties, and of suits brought, or threatened to

 be brought, for the recovery of duties paid under protest. It is matter of history

that the alleged right to retain on these two accounts, had led to great abuses,

and to much loss to the public; and it is to these two subjects, therefore, that the

act of Congress particularly addresses itself. It begins by declaring that all

money received on these accounts shall be paid into the Treasury; and then, inorder to show that the collector is not the person with whom any claims for this

money are to be adjusted, or who is to be held responsible for it, the act

 proceeds to declare that the money shall not remain in his hands even if the

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 protest is followed by a suit: that, notwithstanding suit may be brought against

him, he shall still pay the money into the Treasury, and that the controversy

shall be adjusted with the Secretary. Congress supposed, probably, that a party

might choose to sue the collector, as has been done in this instance; but it does

not by any means follow, that it was intended to make him liable in the suit, or 

to give the party the right of recovery against him. The words used go to show,

that neither a protest which is mentioned in the first part of the section, nor asuit which is mentioned in the clause of which we are speaking, shall be a

 pretext or excuse for retaining the money. Suppose the words in relation to a

litigation had been omitted, and the law had said, that the collector should not

retain the money for any ascertainment of duties, but that the Secretary of the

Treasury in that case, as well as in the case of duties paid under protest, should

adjust the claim and pay what was really due. The omission supposed would

have strongly implied that, if there was litigation, he might retain, and it might

 be said with much show of reason, that by forbidding him to retain for unascertained duties, but not forbidding him to retain in case of litigation for 

duties paid under protest, implied that he could not retain for the former but

might for the latter. We hold it not a logical mode of reasoning where the

omission of words would evidently lead to a particular conclusion, to argue that

their insertion can do the same thing. Besides, the litigation spoken of, and

which is said to lead to this result, is a litigation for duties paid under protest,

and not for over-payments of unascertained duties. If these words were

intended to sanction suits against collectors for the former, why are litigationsfor the latter not also countenanced? Independently of this statute, the collector 

might have been sued for over-payments on unascertained duties as well as for 

duties paid under protest. And it can hardly be reconciled with reason or 

consistency that Congress designed to preserve the right of suit in the one case,

and to deny it in the other. Yet if these words have the force contended for by

the defendant in error, they give the right of action against the collector for 

duties paid under protest only, leaving the party who has overpaid

unascertained and estimated duties, no remedy but that of resorting to the

Secretary of the Treasury. It would be difficult to assign any good reason for 

such a diversity; we think none such was intended, that none such in reality

exists, that the law intends merely to declare that if the protest is followed by a

suit, the duties in that case as well as in the other, shall be paid into the

Treasury and shall not remain in the hands of the collector to abide the result of 

the suit. The conclusion to which we have come upon this statute is greatly

strengthened by the act of Congress of May 31st, 1844, ch. 31, which, in suits

 brought by the United States for the enforcement of the revenue laws, or for the

collection of duties due or alleged to be due on merchandise imported,

authorizes a writ of error from this court to the Circuit Courts without regard to

the sum in controversy. The object of this law undoubtedly was, to obtain

uniformity of decision in regard to the duties imposed. Prior to the act of 1839

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there were often differences of opinion in the circuits in the construction of the

laws, and in instances too in which the amount in controversy was too small to

enable either party to bring them here for revisal by writ of error. It can hardly

then be imagined that when Congress was taking measures expressly to secure

uniformity of decision and practice in relation to the amount of duties imposed

 by law, they would have confined the writ of error to cases brought by the

United States, when they were of small amount, and refused it in suits againstcollectors in similar controversies, if they supposed that such suits could still be

maintained. Indeed it has heretofore been in this latter form that the amount of 

duties claimed has been far more frequently contested, than by suits brought by

the United States. And if this form of trying the question had not been intended

to be taken away by the act of 1839, there could have been no reason for 

excluding it from the act of 1844. For the purposes obviously designed by this

law, it would have been much more important to the public to have allowed the

writ of error in suits against collectors, than in suits instituted by the UnitedStates, supposing suits of the former description to be still maintainable; and

the omission of such a remedy strongly implies that the legislature supposed

such suits could be no longer maintained.

6 It is contended, however, that the language and the purposes of Congress, if 

really what we hold them to be declared in the statute of 1839, cannot be

sustained, because they would be repugnant to the Constitution, inasmuch as

they would debar the citizen of his right to resort to the courts of justice. Thesupremacy of the Constitution over all officers and authorities, both of the

federal and state governments, and the sanctity of the rights guarantied by it,

none will question. These are concessa on all sides. The objection above

referred to admits of the most satisfactory refutation. This may be found in the

following positions, familiar in this and in most other governments, viz.: that

the government, as a general rule, claims an exemption from being sued in its

own courts. That although, as being charged with the administration of the

laws, it will resort to those courts as means of securing this great end, it will not permit itself to be impleaded therein, save in instances forming conceded and

express exceptions. Secondly, in the doctrines so often ruled in this court that

the judicial power of the United States, although it has its origin in the

Constitution, is (except in enumerated instances, applicable exclusively to this

court) dependent for its distribution and organization, and for the modes of its

exercise, entirely upon the action of Congress, who possess the sole power of 

creating the tribunals (inferior to the Supreme Court) for the exercise of the

 judicial power, and of investing them with jurisdiction either limited,concurrent, or exclusive, and of withholding jurisdiction from them in the exact

degrees and character which to Congress may seem proper for the public

good.2 To deny this position would be to elevate the judicial over the legislative

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 branch of the government, and to give to the former powers limited by its own

discretion merely. It follows, then, that the courts created by statute must look 

to the statute as the warrant for their authority, certainly they cannot go beyond

the statute, and assert an authority with which they may not be invested by it, or 

which may be clearly denied to them. This argument is in no wise impaired by

admitting that the judicial power shall extend to all cases arising under the

Constitution and laws of the United States. Perfectly consistent with such anadmission is the truth, that the organization of the judicial power, the definition

and distribution of the subjects of jurisdiction in the federal tribunals, and the

modes of their action and authority, have been, and of right must be, the work 

of the legislature. The existence of the Judicial Act itself, with its several

supplements, furnishes proof unanswerable on this point. The courts of the

United States are all limited in their nature and constitution, and have not the

 powers inherent in courts existing by prescription or by the common law.3

7 In devising a system for imposing and collecting the public revenue, it was

competent for Congress to designate the officer of the government in whom the

rights of that government should be represented in any conflict which might

arise, and to prescribe the manner of trial. It is not imagined, that by so doing

Congress is justly chargeable with usurpation, or that the citizen is thereby

deprived of his rights. There is nothing arbitrary in such arrangements; they are

general in their character; are the result of principles inherent in the

government; are defined and promulgated as the public law. A more strikingexample of the powers exerted by the government, in relation to its fiscal

concerns, than is seen in the act of 1839, is the power of distress and sale,

authorized by the act of Congress of May 15th, 1820, (3 Story, 1791,) upon

adjustments of accounts by the first comptroller of the Treasury. This very

strong and summary proceeding has now been in practice for nearly a quarter of 

a century, without its regularity having been questioned, so far as is known to

the court. The courts of the United States can take cognisance only of subjects

assigned to them expressly or by necessary implication; a fortiori, they can takeno cognisance of matters that by law are either denied to them or expressly

referred ad aliud examen.

8 But whilst it has been deemed proper, in examining the question referred to by

the Circuit Court, to clear it of embarrassments with which, from its supposed

connection with the Constitution, it is thought to be environed, this court feel

satisfied that such embarrassments exist in imagination only and not in reality:

that the case and the question now before them present no interference with theConstitution in any one of its provisions, and may be, and should be disposed of 

upon the plainest principles of common right. In testing these propositions it is

 proper to recur to the case of Elliott  and Swartwout , and again to bring to view

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the grounds on which that case was ruled. It was, unquestionably, decided upon

 principles which may be admitted in ordinary cases of agency, which expressly

recognize the right, nay, the duty of the agent to retain, and make his omission

so to retain an ingredient in the gravamen or breach of duty, whence his liability

and his promise are implied by the law. The language of the court, 10 Pet., 154,

is this: 'There can be no hardship in requiring the party to give notice to the

collector that he considers the duty claimed illegal, and put him on his guard byrequiring him not to pay over the money. The collector would then be placed in

a situation to claim an indemnity from the government. But if the party is

entirely silent, and no intimation is given of an intention to seek repayment of 

the money, there can be no ground upon which the collector can retain the

money, or call upon the government to idemnify him against a suit.' Here then

the right and the duty of retainer are sanctioned in the officer; without them the

notice spoken of would be nugatory—a vain act, which the law never requires.

And this right and this duty in the officer, and this injunction of notice to him,must all be understood and are propounded in this decision as principles or 

 precepts of the law, with the knowledge of which each of the parties must stand

affected.

9 The action of assumpsit for money had and received, it is said by Ld.

Mansfield, Burr., 1012, Moses v. Macfarlen, will lie in general whenever the

defendant has received money which is the property of the plaintiff, and which

the defendant is obliged by the ties of natural justice and equity to refund. And by Buller, Justice, in Stratton v. Rastall , 2 T. R., 370, 'that this action has been

of late years extended on the principle of its being considered like a bill in

equity. And, therefore, in order to recover money in this form of action the

 party must show that he has equity and conscience on his side, and could

recover in a court of equity.' These are the general grounds of the action as

given from high authority. There must be room for implication as between the

 parties to the action, and the recovery must be ex equo et bono, or it can never 

 be. If the action is to depend on the principles laid down by these judges, andespecially by Buller, a case of hardship merely could scarcely be founded upon

them; much less could one of injustice or oppression, nor even one which arose

from irregularity or indiscretion in the plaintiff's own conduct. So far as the

liability of agents in this form of action appears to have been considered, the

general rule certainly is, that the action should be brought against the principal

and not against a known agent, who is discharged from liability to a bona fide

 payment over to his principal, unless anterior to making payment over he shall

have had notice from the plaintiff of his right and of his intention to claim themoney. The absence of notice will be an exculpation of the agent in every

instance. And with regard to the effect of the notice in fixing liability upon the

agent, that effect is dependent on the known powers of the agent and the

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character of his agency. If, for instance, the agent was known to be a mere

carrier or vehicle to transfer to his employer the amount received, payment to

the agent with such knowledge, although accompanied with a denial of the

 justice of the demand, would seem to exclude every idea of an agreement

express or implied on the part of the agent to refund; and could furnish no

ground for this action against the agent who should pay over the fund received

to his principal. This doctrine is believed to be sanctioned by the cases of Greenaway v. Hurd , 4 T. R. 553, of Coles v. Wright , 4 Taunt., 198, and of Tope

v. Hockin, 7 Barn. & Co., 101. 'Tis true that the case in Taunt. and that from

Barn. & C., were not instances of payment under protest; but the case from 4 T.

R., has this common feature with that before us, that it was an action against an

excise officer for duties said to have been illegally collected, in which the

 plaintiff denied the legality of the demand, though he subsequently paid it. But

all three of these cases concur in condemning the harshness of a rule which

would subject an agent, who is mere channel of conveyance or delivery of theamount which might pass through his hands. Neither of these cases was

affected by a positive statutory mandate requiring the agent to make payment

over to his principal.

10 Another principle held to be fundamental to this action is this: that there must

exist a privity between the plaintiff and defendant; something on which an

obligation, an engagement, a promise from the latter to the former can be

implied; for if such implication be excluded from the relation between the parties by positive law, or by inevitable legal intendment, every foundation for 

the promise and of the action upon it is destroyed; for none can be presumed or 

 permitted to promise what either law or reason does not warrant or may actually

forbid. Thus, where bankers received bills from their foreign correspondents,

with directions to pay the amount to the plaintiff, but on being applied to by

him refused to do so, although they afterwards received the amount of these

 bills; it was held, that an action for money had and received would not lie to

recover it from them, there being no privity between them and the plaintiff.Lord Ellenborough observed, the defendants might hold for the benefit of the

remitter, until by some engagement entered into by themselves with the persons

who were the objects of the remittance, they had precluded themselves from so

doing; but here, so far from there being such an engagement, they repudiated it

altogether. Williams v. Everett , 14 East, 582. Again, where J., an attorney, who

was accustomed to receive dues for the plaintiff, went from home, leaving B.,

his clerk, at the office; B., in the absence of his master, received money on

account of the above dues for the client, which he was authorized to do, andgave a receipt 'B., for Mr. J.' J. was in bad circumstances when he left home,

and never returned. B. afterwards refused to pay the money to the client, and on

an action for money had and received against him, it was held not to lie; for the

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defendant received the money as the agent of his master, and was accountable

to him for it; the master, on the other hand, being answerable to the client for 

the money received by the clerk, there was no privity of contract between the

 present plaintiff and the defendant: Stevens v. Badcock , 3 Barn. & A., 354. So

in the case of Sims et al. v. Brittain et al., 4 Id., 375. A., B., and others, were

 part-owners of a ship in the service of the East India Company; B. was

managing owner, and employed C. as his agent, and C. Kept a separate accounton his books with B. as such managing owner. In order to obtain payment of a

sum of money from the East India Company on account of the ship, it was

necessary that the receipt should be signed by one or more of the owners

 besides the managing owner; and upon a receipt being signed by B. and by

another of the owners, C. received 2,000 on account of the ship, and placed it to

the credit of B. in his books as managing owner; the part-owners having

 brought money had and received to recover the balance of that account, held,

that C. had received the money as the agent of B., and was accountable to himfor it; and that there was no privity between the other part-owners and C., and

consequently, that the action was not maintainable. To the same effect are the

cases of Rogers v. kelly, 2 Campb., 123, and Edden v. Read , 3 Id., 339, and

Wedlake v. Husley, 1 Crompt. & J., 83. If indeed the defendant has consented

(where he can properly consent) to hold the money for the use of the plaintiff,

he may be liable. And it is conceded, that his consent need not be express, but it

must, if not so, rest upon fair and natural implication or legal intendment.

Where such implication or intendment is excluded, forbidden by the position of the parties, by positive law, or by the character of the transaction, consent or 

any obligation upon which to imply it is entirely removed.

11 We have thus stated, and will here recapitulate, the principles on which the

action for money had and received may be maintained. They are these: 1st.

Whenever the defendant has received money which is the property of the

 plaintiff, and which the defendant is obliged, by the ties of natural justice and

equity, to refund. 2dly. In the case of an agent, where such agent is notnotoriously the mere carrier or instrument for transferring the fund, but has the

 power of retaining, and before he had paid over has received notice of the

 plaintiff's claim, and a warning not to part with the fund. 3dly. Where there

exists a privity between the plaintiff and the defendant. Let the case before us

 be brought to the test of these rules. The 2d section of the act of Congress

declares, first, that from its passage, all money paid to any collector of the

customs for unascertained duties, or duties paid under protest against the rate or 

amount of duties charged, shall be placed to the credit of the treasurer, to bekept and applied as all other money paid for duties required by law. Secondly,

that they shall not be held by the collector to await any ascertainment of duties,

or the result of any litigation concerning the rate or amount of duty legally

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chargeable or collectible. And thirdly, that in all cases of dispute as to the rate

of duties, application shall be made to the Secretary of the Treasury, who shall

direct the repayment of any money improperly charged. This section, as a part

of the public law, must be taken as notice to all revenue officers, and to all

importers and others dealing with those officers in the line of their duty. There

is nothing obscure or equivocal in this law; it declares to every one subject to

the payment of duties, the disposition which shall be made of all payments infuture to collectors; tells them those officers shall have no discretion over 

money received by them, and especially that they shall never retain it to await

the result of any contest concerning the right to it; and that quoad  this money

the statute has converted those officers into mere instruments for its transfer to

the Treasury. With full knowledge thus imparted by the law, can it be correctly

understood that the party making payment can, ex equo et bono, recover against

the officer for acting in literal conformity with the law, converting thereby the

 performance of his duty into an offence; or that upon principles of equity andgood conscience, an obligation and a promise to refund shall be implied against

the express mandate of the law? Such a presumption appears to us to be

subversive of every rule of right. The more correct inference seems to be that

 payment under such circumstances must, ex equo et bono, nay, ex necessitate,

and in despite of objection made at the time, be taken as being made in

conformity with the mandate of the law and the duty of the officer, which

exclude not only any implied promise of repayment by the officer, but would

render void an express promise by him, founded upon a violation both of thelaw and of his duty. The claimant had his option to refuse payment; the

detention of the goods for the adjustment of duties, being an incident of 

 probable occurrence, to avoid this it could not be permitted to effect the

abrogation of a public law, or a system of public policy essentially connected

with the general action of the government. The claimant, moreover, was not

without other modes of redress, had he chosen to adopt them. He might have

asserted his right to the possession of the goods, or his exemption from the

duties demanded, either by replevin, or in an action of detinue, or perhaps by an

action of trover, upon his tendering the amount of duties admitted by him to be

legally due. The legitimate inquiry before this court is not whether all right of 

action has been taken away from the party, and the court responds to no such

inquiry. The question presented for decision, and the only question decided, is

whether, under the notice given by the statute of 1839, payments made in

despite of that notice, though with a protest against their supposed illegality,

can constitute a ground for that implied obligation to refund, and for that

 promise inferred by the law from such obligation, which are inseparable from,

and indeed are the only foundation of, a right of recovery in this particular form

of action. And here is presented the answer to the assertion, that by the act of 

1839, or by the construction given to it by this court, the party is debarred all

access to the courts of justice, and left entirely at the mercy of an executive

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officer. Neither have Congress nor this court furnished the slightest ground for 

the above assertion.

12 But the objection to a recovery in this action may be farther extended, upon

grounds which to the court appear to be insuperable. We all know that this

action for money had and received is founded upon what the law terms an

implied promise to pay what in good conscience the defendant is bound to payto the plaintiff. It being in such case the duty of the defendant to pay, the law

imputes to him a promise to pay. This promise is always charged in the

declaration, and must be so charged in order to maintain the action. It was upon

this principle that the action for money had and received was sustained in the

case of Elliott  v. Swartwout . There money had been taken by the collector for 

duties which were not imposed. This money lawfully belonged to the plaintiff;

it was the duty, therefore, of the collector to pay it back to him. The collector 

was not bound to pay it to the treasurer, for the law did not command thisdisposition of it. It did not belong to the United States, who had no right,

therefore, to demand it of him, and could not have recovered it against him, in a

suit, if he had paid it back to the true owner. It being the duty of the collector to

return what he had unlawfully taken, the law implied on his part a promise to

do so; and on this implied promise, arising or inferred from a duty imposed

upon him, the action was maintained. The protest and notice were to him of no

farther importance than to warn him to hold over, and to take away an excuse

he might otherwise have had from payment to his principal. It was his duty, asthe law then stood, not to pay over, but to pay back to the party from whom he

had collected without legal authority, when warned that this party should look 

to him for reimbursement, and not to his principal. But the law never implies a

 promise to pay, unless duty creates the obligation to pay; and more especially it

never implies a promise to do an act contrary to duty or contrary to law. Now,

under the statute of 1839, if the collector receives money, though for duties not

due, it is nevertheless made his duty to pay it into the Treasury, to be repaid

there, if the party claiming is found to be entitled to it. And the question here is,will the law imply a promise from the collector to do that which is contrary to

his official duty, contrary to the command of a positive statute? If it will not

then the action of assumpsit for money had and received will not lie in this

case.

13 Moreover, the law will never imply a promise where it would be unjust to the

 party to whom it would be imputed, and contrary to equity so to imply it.

Suppose the collector should not, as directed by law, pay the money into theTreasury, the United States might undoubtedly maintain an action against him

for money had and received to their use. Because it being his duty to do so, the

law would imply a promise to pay it. Can the law at the same time imply a

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 promise to pay it elsewhere or to another, and thus burden the collector with the

double obligation of paying to the government, and also to one claiming in

adversary interest? If suit were instituted against him by both parties, and were

standing for trial at the same time, would both be entitled to a recovery, and

would the law imply promises to both, promises to pay double the amount

received? We think not; and as the law in positive terms directs payment to be

made into the Treasury, there can be no judicial implication contrary to law, nor that the collector will pay to another what the law directs him to pay to the

United States; and no judicial implication which would require him to be guilty

of an act of official misconduct, or a breach of his duty to the public. If the law

implies a promise to pay back to the party, then it must be the duty of the

collector to do so as soon as it is demanded. If the money may be recovered of 

him by suit, then he would be justified in paying without suit, yet if he does so

 pay, he not only violates a duty imposed by law, but may be compelled to pay

over again to the government, as for so much money had and received to itsuse. We think the law can never imply a promise which must be unjust and

oppressive in its results to the party, or contrary to his duty as a public officer;

and there being no implied promise, therefore in this case the action for money

had and received cannot be maintained. It is perfectly clear to the court that,

under the act of 1839, the United States have, by express law, a right to demand

the money from the collector, and to recover it in an action for money had and

received, even if that officer had paid it over to the person from whom he had

received it; and we say with confidence that in the multitude of cases that have been decided in relation to that action, there is not one in which it had been held

that money could be recovered from a defendant when his voluntary payment

of it would leave him still liable to an action for the same money by another.

14 We deem it unnecessary to examine farther the grounds stated in the second

and third heads of inquiry, as forming the foundation of the action for money

had and received; or to bring to a particular comparison with those grounds the

law and the facts of this case, as presented upon the record. The illustrationsgiven under the first head embrace all that is important under the remaining

divisions, with respect to the nature of the demand and the position of the

 parties. Those illustrations establish, in the view of the court, that, so far is the

defendant from being obliged, by the ties of natural equity and justice, to refund

to the plaintiff the money received for duties, that, on the contrary, under that

notice of the law which all must be presumed to possess, the payment must be

understood as having been made with knowledge of the parties that the right of 

retaining or of refunding the money did not exist in the defendant; that themoney by law must pass from him immediately upon its receipt; that payment

to him was in legal effect payment into the Treasury; that notice to him was,

under such circumstances, of no effect to bind him to refund; that as the

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collector, since the statute, had power neither to retain or refund, there could, as

 between him and the plaintiff, arise no privity nor implication, on which to

found the promise raised by the law, only where an obligation to undertake or 

 promise exists; and that, therefore, the action for money had and received could

not, in this case, be maintained, but was barred by the act of Congress of 1839.

15 Mr. Justice STORY.

16 I regret exceedingly being compelled by a sense of duty to express openly my

dissent from the opinion of the majority of the court in this case. On ordinary

occasions my habit is to submit in silence to the judgment of the court where I

happen to entertain an opinion different from that of my brethren. But the

 present case involves, in my judgment, doctrines and consequences which, with

the utmost deference and respect for those who think otherwise, I cannot but

deem most deeply affecting the rights of all our citizens, and calculated tosupersede the great guards of those rights intended to be secured by the

Constitution through the instrumentality of the judicial power, state or national.

The question, stripped of all formalities, is neither more nor less than this:

Whether Congress have a right to take from the citizens all right of action in

any court to recover back money claimed illegally, and extorted by compulsion,

 by its officers under color of law, but without any legal authority, and thus to

deny them all remedy for an admitted wrong, and to clothe the Secretary of the

Treasury with the sole and exclusive authority to withhold or restore thatmoney according to his own notions of justice or right? If Congress may do so

in the present case, in the exercise of its power to levy and collect taxes and

duties, and thus take away from all courts, state and national, all right to

interpret the laws for levying and collecting taxes and duties, and to confide

such interpretation to one of its own executive functionaries, whose judgment is

to be at once summary and final, then I must say, that it seems to me to be not

what I had hitherto supposed it to be: a government where the three great

departments, legislative, executive, and judicial, had independent duties to perform each in its own sphere; but the judicial power, designed by the

Constitution to be the final and appellate jurisdiction to interpret our laws, is

superseded in its most vital and important functions. I know of no power,

indeed, of which a free people ought to be more jealous, than of that of levying

taxes and duties; and yet if it is to rest with a mere executive functionary of the

government absolutely and finally to decide what taxes and duties are leviable

under a particular act, without any power of appeal to any judicial tribunal, it

seems to me that we have no security whatsoever for the rights of the citizens.And if Congress possess a constitutional authority to vest such summary and

final power of interpretation in an executive functionary, I know no other 

subject within the reach of legislation which may not be exclusively confided in

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the same way to an executive functionary; nay, to the executive himself. Can it

 be true that the American people ever contemplated such a state of things as

 justifiable or practicable under our Constitution? I cannot bring my mind to

 believe it; and, therefore, I repeat it, with the most sincere respect for my

 brethren, who entertain a different opinion, I deny the constitutional authority

of Congress to delegate such functions to any executive officer, or to take away

all right of action for an admitted wrong and illegal exercise of power in thelevy of money from the injured citizens. I am further of opinion, as I shall

endeavor presently to show, that Congress nevery had contemplated passing

any such act, and that the act of the 3d of March, 1839, ch. 82, § 2, neither 

requires nor in my humble judgment justifies such an interpretation.

17 What is the real question presented, upon the division of opinion in the Circuit

Court, for the consideration of this court? It is not whether an action to recover 

 back the money illegally claimed and paid to the collector for duties, in order toobtain possession of the goods by the owner under a protest they were not

legally due, would lie in the Circuit Court, for no such question arises on the

record, and it is incontrovertible and uncontroverted, that if any such action

would lie, it would lie in the national courts as well as in the state courts. It is

not whether Congress may limit, restrain, modify, or even take away the right

to sue in the national courts, in cases like the present, or, indeed, in any other 

class of cases not constitutionally provided for, but it is simply whether the act

of Congress of the 3d of March, 1839, ch. 82, § 2, is a bar to such an action inany court, state or national. If it is a good bar in one court, it is good in all

courts under the provisions of that act. If Congress have a right to say, and have

said, under the provisions of that act, that no officers of the customs shall be

liable to any action for money extorted by him under color of his office without

authority and against law, then these provisions are equally applicable to all

courts, and furnish the rule of decision for all. And Congress have an equal

right to apply a like provision to all other acts of all other officers done under 

color of office, and the trial by jury may, in suits at common law, be completelytaken away in all such cases, and the right of final decision be exclusively

vested in the executive, or in any other public functionary, at the pleasure of 

Congress.

18  Now, how stands the common law on this very subject? It is that an action for 

money had and received lies in all cases to recover back money which a person

 pays to another in order to obtain possession of his goods from the latter, who

withholds them from him upon an illegal demand, or claim, colore officii, andthus wrongfully receives and withholds the money. Such a payment is in no just

sense treated in law as a voluntary payment, but it is treated as a payment made

 by compulsion, and extorted by the necessities of the party who pays it. Such is

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the doctrine of the common law as held in England, with a firm and steady

hand, against all the claims of prerogative, and it is maintained in our day as the

undeniable right of every Englishman, against the unjust and illegal exactions

of officers of the crown. Mr. Justice Bayley laid down the general principle

with great exactness in Shaw v. Woodcock , 7 Barn. & C., 73, 84, and said: 'If a

 party has in his possession goods or other property belonging to another, and

refuses to deliver such property to that other unless the latter pays him a sum of money which he has no right to receive, and the latter, in order to obtain

 possession of his property, pays that sum, the money so paid is a payment made

 by compulsion, and may be recovered back.' In Irving  v. Wilson, 4 T. R., 485,

the doctrine was applied to the very case of the acts of an officer of the excise

or customs. Upon that occasion Lord Kenyon emphatically said: 'The revenue

laws ought not to be made the means of oppressing the subject. If goods liable

to a forfeiture be forfeited, the officer is to seize them for the king, but he is not

 permitted to abuse the duties of his station, and to make it a mode of extortion.'There are many other authorities leading to the same result, but it is

unnecessary to cite them, since the very point that an action for money had and

received lies against a collector of the customs to recover back money

demanded by and paid to him, colore officii, upon goods imported, for duties

not legally due thereon, has been, upon the most solemn deliberation, held by

this court in the cases of Elliott  v. Swartwout , 10 Pet., 137, and Bend  v. Hoyt ,

13 Id., 263, 267.

19 It is an entire mistake of the true meaning of the rule of the common law, which

is sometimes suggested in argument, that the action of assumpsit for money had

and received is founded upon a voluntary, express, or implied promise, of the

defendant, or that it requires privity between the parties ex contractu to support

it. The rule of the common law has a much broader and deeper foundation.

Wherever the law pronounces that a party is under a legal liability or duty to

 pay over money belonging to another, which he has no lawful right to exact or 

retain from him, there it forces the promise upon him in invitum to pay over themoney to the party entitled to it. It is a result of the potency of the law, and is in

no shape dependent upon the will or consent or voluntary promise of the

wrongful possessor. The promise is only the form in which the law announces

its own judgment upon the matter of right and duty and remedy; and under such

circumstances any argument founded upon the form of the action, that it must

arise under or in virtue of some contract, is disregarded, upon the maxim qui

hoeret in litera, hoeret in cortice. Hence, it is a doctrine of the common law, (as

for as my researches extend,) absolutely universal, that if a man, by fraud, or wrong, or illegality, obtains, or exacts, or retains money justly belonging to

another, with notice that the latter contests the right of the former to receive, or 

exact, or retain it, an action for money had and received lies to recover it back;

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and it is no answer for the wrongdoer to say that he has paid it over to his

superior; for although as between the wrongdoer and his superior, the maxim

may well apply, respondent supperior , yet the injured party is not bound to

seek redress in that direction; and a fortiori, &c., he is not so bound, where, as

in the case of the government, the superior is not suable. That would be a mere

mockery of justice. And this is the very doctrine affirmed in its full extent by

this court in the cases of Elliott  v. Swartwout , 10 Pet., 137, and Bend  v. Hoyt ,13 Id., 263, 267.

20 An action for money had and received being then the known and appropriate

remedy of the common law, applied to cases of this sort, to protect the subject

from illegal taxation, and duties levied by public officers, what ground is there

to suppose that Congress could intend to take away so important and valuable a

remedy, and leave our citizens utterly without any adequate protection? It is

said, that circuitously another remedy may be found. The answer is, that if Congress have taken away the direct remedy, the circuitous remedy must be

equally barred. But in point of fact no other judicial remedy does exist or can be

applied. If the collector is not responsible to pay back the money, nobody is.

The government itself is not suable at all; and certainly there is no pretence to

say that the Secretary of the Treasury is suable therefor. Where then is the

remedy which is supposed to exist? It is an appeal to the Secretary of the

Treasury for a return of the money, if in his opinion it ought to be returned, and

not otherwise. No court, no jury, nay, not even the ordinary rules of evidence,are to pass between that officer and the injured claimant, to try his rights or to

secure him adequate redress. Assuming that the Secretary of the Treasury will

always be disposed to do what he deems to be right in the exercise of his

discretion, and that he possesses all the qualifications requisite to perform this

duty, among the other complicated duties of his office—a presumption which I

am in no manner disposed to question—still it removes not a single objection. It

is, after all, a substitution of executive authority and discretion for judicial

remedies. Nor should it be disguised, that upon so complicated a subject as thenature and character of articles made subject to duties, grave controversies must

always exist (as they have always hitherto existed) as to the category within

which particular fabrics and articles are to be classed. The line of discrimination

 between fabrics and articles approaching near to each other in quality, or 

component materials, or commercial denominations, is often very nice and

difficult, and sometimes exceedingly obscure. It is the very case, therefore,

which is fit for judicial inquiry and decision, and falls within the reach of that

 branch of the judicial power given by the Constitution, where it is declared 'thatthe judicial power shall extend to all cases in law and equity arising under this

Constitution, the laws of the United States, and treaties, &c.' If then the judicial

 power is to extend to all cases arising under the laws of the United States, upon

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what ground are we to say that cases of this sort, which are eminently 'cases

arising under the laws,' and of a judicial nature, are to be excluded from judicial

cognisance, and lodged with an executive functionary?

21 Besides, we all know that, in all revenue cases, it is the constant practice of the

Secretary of the Treasury to give written instructions to the various collectors of 

the customs as to what duties are to be collected under particular revenue laws,and what, in his judgment, is the proper interpretation of those laws. I will

venture to assert that, in nineteen cases out of twenty of doubtful interpretation

of any such laws, the collector never acts without the express instructions of the

Secretary of the Treasury. So that in most, if not in all cases where a

controversy arises, the Secretary of the Treasury has already pronounced his

own judgment. Of what use then, practically speaking, is the appeal to him,

since he has already given his decision? Further, it is well known, and the

annals of this court as well as those of the other courts of the United Statesestablish in the fullest manner, that the interpretations so given by the Secretary

of the Treasury have, in many instances, differed widely from those of the

courts. The Constitution looks to the courts as the final interpreters of the laws.

Yet the opinion maintained by my brethren does, in effect, vest such

interpretation exclusively in that officer.

22 These considerations have led me to the conclusion that it never could be the

intention of Congress to pass any statute, by which the courts of the UnitedStates, as well as the state courts, should be excluded from all judicial power in

the interpretation of the revenue laws, and that it should be exclusively

confided to an executive functionary finally to interpret and execute them—a

 power which must press severely upon the citizens, however discreetly

exercised, and which deeply involves their constitutional rights, privileges, and

liberties. The same considerations force me, in all cases of doubtful or 

ambiguous language admitting of different interpretations, to cling to that which

should least trench upon those rights, privileges, and liberties, and a fortiori toadopt that which would be in general harmony with our whole system of 

government.

23 And this leads me to say that, after the most careful examination of the 2d

section of the act of 1839, ch. 82, I have not been able to find any ground to

 presume that Congress ever contemplated any thing contained in that section to

 be a bar to the present action. I look upon that section as framed for a very

different object, an object founded in sound policy and to secure the publicinterest. It was to prevent officers of the customs from retaining (as the habit of 

some had been) large sums of money in their hands received for duties, upon

the pretence that they had been paid under protest, and thus to secure in the

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hands of the officers a sufficient indemnity for all present as well as future

liabilities to the persons who had paid them. By this means large sums of 

money were withheld from the government, and there was imminent danger 

that severe losses might thus be sustained from the defalcation of those officers,

and the public revenue might be thus appropriated to the personal business or 

speculating concerns of the officers. If actions should be brought and judgment

obtained against such officers for the repayment of any of such duties, it was plain that the government would be bound to indemnify them, especially if they

had acted under instructions from the Treasury Department. On the other hand,

the government, being in possession of the money, would hold it in the mean

time as a deposit to await events, and to refund the same if in the due

administration of the law it was adjudged that it ought to be refunded. Such, in

my judgment, was the object and the sole object of the section, and it seems to

me in this view to be founded in a wise protective policy.

24 With this exposition in our view, let us examine the language of the section. It

is as follows: 'That from and after the passage of this act, all money paid to any

collector of the customs or to any person acting as such, for unascertained

duties or for duties paid under protest against the rate or amount of duties

charged, shall be placed to the credit of the treasurer of the United States, kept

and disposed of as all other money paid for duties is required by law or by

regulation of the Treasury Department to be placed to the credit of said

treasurer, kept and disposed of; and shall not be held by the said collector or  person acting as such to await any ascertainment of duty, or the result of any

litigation in relation to the rate or amount of duty legally chargeable and

collectible in any case where money is so paid.' Now, pausing here, it seems to

me that the clause is plainly and merely directory to the collector or person

acting as such, pointing out his duty and requiring him to pass the money so

 paid to the credit of the government as soon as it is received. Nothing is here

said as to the rights of third persons, who pay the money for duties; no

declaration is made that the collector shall not be liable to any action for suchduties, if not legally demandable or payable, or that the collector or such other 

 person shall not be liable to refund the same. And yet, if such had been the

intention of Congress, it seems to me incredible that a provision to this effect

should not have been found in the act. But further; not only is there a total

absence of any such provision, but there is positive evidence that Congress

contemplated that there would be suits brought against the collectors and other 

 persons for the repayment of such duties, and, accordingly, as we see, the

money is not to be retained by them 'to await any ascertainment of duties or theresult of any litigation.' The language is not limited to the result of past or 

 pending litigation, but it equally applies to future litigation; in short, any

litigation, without any limitation as to time, and indeed to be co-extensive with

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the permanent prospective operation of the act. If then, there is in this clause no

 positive or implied bar to any action provided for, and if the clause is perfectly

satisfied by deeming it to be what it professes on its face to be, a regulation

addressed to the collectors and other persons collecting duties, and directory to

them, let us see if the subsequent clause, which contains the residue of the

section, either enlarges, or qualifies, or repels the inferences drawn from the

 preceding clause. This clause is, 'But whenever it shall be shown to thesatisfaction of the Secretary of the Treasury, that, in any case of unascertained

duty or duties paid under protest, more money has been paid to the collector or 

other person acting as such, than the law requires should have been paid, it

shall be his duty to draw his warrant upon the treasurer in favor of the person or 

 persons entitled to the over-payment, directing the said treasurer to refund the

same out of any money in the Treasury not otherwise appropriated.' This is the

whole of the clause, and, unless I am greatly deceived in its purport and effect,

not one word is to be found therein which bars the party who has paid themoney from his right of action against the collector or other persons acting as

such to recover back the money illegally claimed, or which compels such party

to make his application or appeal solely to the Secretary of the Treasury for 

redress, or gives to the latter exclusive power, jurisdiction, and final arbitrament

in the premises. The true object of this clause seems to be precisely what its

language imports, to give the Secretary of the Treasury a power which he did

not previously possess, to draw from the Treasury money which had been

overpaid for duties when he was satisfied of such over-payment, upon theapplication of the party interested. It was not to be compulsive on the party, that

he should so apply, but he had an option to apply to the Secretary, to save the

delay and expense of a protracted litigation, if the Secretary should grant him

the desired relief. It would also diminish the necessity of applications to

Congress for the repayment of money which had been illegally paid for duties,

 by enabling the Secretary to draw his warrant upon the Treasury for the

amount; which relief, when the money had been paid into the Treasury, could

not before be obtained except by means of an act of Congress. It was, therefore,

an auxiliary provision to the general rights of action secured to the party by the

common law, and not in extinguishment or suspension of it. Whether the clause

clothed the Secretary also with authority to draw a warrant in favor of the party,

if he recovered back the money in a suit at law against the collector, is a matter 

which might, upon the strict words of the clause, admit of some doubt, since the

case provided for is only where the over-payment shall be shown to the

satisfaction of the secretary, and not where it is a result of a judgment at law.

But a liberal construction might embrace such a case also, as within the intent,

if not strictly within the words. But be this as it may, it is manifest to my mind,

with all deference to the judgment of others, that the affirmative power thus

given by this clause to the Secretary, cannot be construed to exclude the right of 

the party to his remedy at the common law without a violation of the known

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rules of interpretation, by adding important and material language which the

legislature has not used, and incorporating provisions which neither the words

nor the professed objects of the section require.

25  Nor am I able to perceive any grounds upon which a different interpretation can

 be maintained, unless it be, that it would be a hardship upon the collector to

require him to pay money over to the government which he might be compelledagain to pay to the party from whom he had illegally demanded it. One answer 

to this suggestion is, that he cannot complain, because it is his own choice to

hold an office to which such a duty or responsibility is attached, and if he elects

to hold it, he ought to take it cum onere. Another and conclusive answer is, that

he has a perfect right of indemnity from the government; nor can it be doubted

that the government will always indemnify all its officers for acts done by its

orders and demands made under its authority. On the other hand, an extreme

hardship would be thrown upon the injured party, whose money is taken fromhim against his will by color of office, and against his right, if his common law

remedy is swept away; for then he can have no means of redress, and no

indemnity, since he has resisted the demands of the government and asserts an

adversary interest.

26  Nor is it any ground of excuse, (as has been already suggested,) in case of 

money paid by compulsion, that the officer has paid over the money to his

 principal; and in this respect it differs from the case of a voluntary payment.This distinction was taken and acted upon in the case of Snowden v. Davis, 1

Taunt., 358, where money had been paid to a bailiff under a threat of a distress

 by an excess of authority, and the money had been paid over by him to the

sheriff, and by the latter into the exchequer. And the same doctrine was fully

recognised and confirmed by this court upon the most solemn consideration in

 Elliott  v. Swartwout , 10 Pet., 137, after a full review of all the leading

authorities.

27 Upon the whole my opinion is, that the question propounded by the Circuit

Court upon the division of opinion of the judges in that court, ought to be

answered in the negative, that the 2d section of the act of 3d of March, 1839,

ch. 82, was no bar to the action.

28 Mr. Justice McLEAN.

29 This suit was brought to recover from the defendant, collector of the customs,

an excess of duties exacted by him of the plaintiffs against law. And on the trial

in the Circuit Court the judges were divided on the question, 'whether the act of 

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the 3d of March, 1839, was a bar to the action.' This point has been certified to

this court.

30 The 2d section of the above act provides, 'that from and after the passage of this

act, all money paid to any collector of the customs, or to any person acting as

such, for unascertained duties, or for duties paid under protest against the rate

or amount of duties charged, shall be placed to the credit of the treasurer of theUnited States, kept and disposed of as all other money paid for duties is

required by law or by regulation of the Treasury Department to be placed to the

credit of the said treasurer, kept and disposed of; and shall not be held by the

said collector, or person acting as such, to await any ascertainment of duties or 

the result of any litigation in relation to the rate or amount of duty legally

chargeable and collectible in any case where money is so paid; but whenever it

shall be shown to the satisfaction of the Secretary of the Treasury, that, in any

case of unascertained duties or duties paid under protest, more money has been paid to the collector or person acting as such than the law requires should have

 been paid, it shall be his duty to draw his warrant upon the treasurer in favor of 

the person or persons entitled to the over-payment, directing the said treasurer 

to refund the same out of any money in the Treasury not otherwise

appropriated.'

31 In the case of Elliott  v. Swartwout , 10 Pet., 137, and in Bend  v. Hoyt , 13 Id.,

263, this court held, that illegal duties exacted by the collector wererecoverable from him, where paid under protest, by the importer, in an action of 

assumpsit. This doctrine is not questioned in this country or in England. Has the

2d section of the act above cited changed the law in this respect? A majority of 

the judges have decided in the affirmative, and that that act constitutes a bar to

an action in such a case. I dissent from the opinion of the court.

32 The above section, in my judgment, so far from taking away the legal remedy,

expressly recognises it. The collector is required, 'from and after the passage of the act,' to pay over to the treasurer the moneys in his hands, and not 'to await

any ascertainment of duties, or the result of any litigation in relation to the rate

or amount of duty legally chargeable,' &c. Now, if Congress intended by this

section to withdraw this subject from the courts, and vest the exclusive right to

decide the matter in the Secretary of the Treasury, could they have used this

language? The law was not to operate upon the past, but upon the future acts of 

the collector. And I ask in sober earnestness, whether the collector could be

required to pay over money, 'and not await the result of a litigation,' as 'to theamount of duties legally chargeable,' if the intention was to prohibit such

litigation. I use the words of the section; and the words of the section alone, as I

think, are conclusive as to the intention of Congress. The collector must pay

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over the money, and not retain it until the termination of a suit. Does this take

away the right to bring a suit? Such an inference, it seems to me, would be as

exceptionable in logic as in law.

33 From the proceedings of this court we know that collectors of the customs after 

their removal from office or the expiration of their term, and sometimes while

in office, under the pretext of indemnifying themselves against suits for theexaction of illegal duties, were in the practice of withholding from the Treasury

large sums of money. And it was to remedy this evil, that the above law was

 passed. As to the remission of duties illegally charged, it vested in the secretary

no new powers; but it authorizes him, where the excess of duty has been paid

into the Treasury, to draw it out by a warrant, and pay it over to the person

entitled to receive it. By the 21st section of the Duty Act of 1799, (1 Story,

592,) the collectors 'were required, at all times, to pay to the order of the proper 

officer the whole of the moneys which they may respectively receive, &c., andshall once in three months, or oftener, if required, transmit their accounts,' &c.

 Now, it is known from public documents and from cases before this court, that

the Secretary of the Treasury has, for a long time before the act of 1839,

required the collector of New York to pay over moneys received by him,

weekly or at short intervals. And can it be pretended that the act of 1799, under 

the instructions of the Secretary of the Treasury, was not as binding upon

collectors as the act of 1839? In a legal point of view the liability of a collector 

was the same for illegal duties received by him, whether paid into the Treasuryunder the one law or the other.

34 It is said that the law cannot raise a promise to pay by an officer, where it

requires him to pay the same money into the Treasury. The action is founded

on the illegality of the transaction. None other than legal duties are payable to

the government; and where an officer by his own volition, or acting under the

instructions of his superior, demands a higher duty than the law authorizes, he

is guilty of a wrong which his instructions cannot justify. And having done this,can it be contended, that by paying over moneys so obtained he can escape the

legal consequence of his unlawful act? Where one person obtains money

illegally from another, is he not bound in conscience to return it? And may not

an action of assumpsit be sustained for the recovery of the money? In such an

action the question is, whether the defendant has received money which he is

 bound in good conscience to pay to the plaintiff. Now, if the defendant, as

collector, exacted a higher duty of the plaintiffs than the law authorized, is he

not bound in conscience to return the excess? But it is said that he has paid itover to the Treasury of the United States, in pursuance of the act of 1839, and

that this is a bar to the action. Why has not this bar been set up under the act of 

1799? By that act the collector, when ordered by the Secretary of the Treasury,

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was as much bound to pay over the money in his hands into the Treasury as

under the act of 1839. And yet for forty-four